The Challenging Case Of Copyright In Digital Works

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Synopsis — Copyright has always been a contentious issue, and no more so than now, with digital works becoming embroiled in arguments about who has the right to use and reuse items created by individuals via digital methods. Even with centuries of publishing-related law behind us, the online publishing arena has challenged the usual assumptions about copyright in ways that were not foreseen by those working in the medium.

Slawski brings his considerable experience and intellect to the issue, discussing the legal implications of copyright online and the various ways in which creations never before envisioned (such as music remixes, the content displayed by search engines, applications developed by individuals, etc.) are changing the landscape. Even if you don’t think that what you do involves copyright issues, consider how you might one day have to deal with the sticky problem of finding chunks of your carefully created website content appearing on someone else’s site with no attribution, no links, no notion that it was created by you — or worse — appearing in an environment that could be harmful to your business.

Bill offers a discussion of the issues involved, but also some straightforward methods for dealing with the problem if you find yourself a victim of copyright infringement. Until the law catches up with the speed of digital development, it’s a wise move to remain educated on the issue and on specific steps you can take to avoid legal entanglement.

The complete article follows …

The Challenging Case Of Copyright In Digital Works

When you create a work of art, and publish/display it where others can appreciate it, the law gives you a copyright in that material. Copyright helps protect you from others reusing your creation without permission or licensing. In the digital age, where many creative endeavors aren’t captured on canvas, sculpted in stone, etched on vinyl, published in print, or fixed in some other permanent form, challenges to copyright protection may seem to make the legal protection toothless.

For example, the hugely popular approach to music known as remix has one musician uploading music to the Web to have others download it, reshape and transform it, and then post it back online for others to enjoy, modify, and upload it again. In remix, there are no concerns about music as a product or who holds what intellectual property rights, but rather the approach involves the sharing of creation and the joy of performance. If you participate in remix, you’re providing a license for others to modify your work as long as they share their efforts as well.

People have attacked Creative Commons (CC) licensing of digital works as an erosion of copyrights, although it’s actually a refinement that acts to both protect copyright and allow others to share content. Attaching a CC license to creations involving audio, video, images, or the written word publishes it in a way that lets others know if and how they can reuse that content. The options include a variety of licenses that consider commercial or non-commercial uses, a requirement of attribution to the original creator, and whether or not the content must remain unchanged or can be altered and remixed. A bonus is that the licenses are machine readable, meaning that applications such as search engines can easily identify whether or not a work is offered under a Creative Commons license. In essence, Creative Commons works are easier to locate and allow others to use under the terms of the license chosen.

Mashups involve the creation of web pages or applications that draw together data or presentation or function from more than one source. Mashups often involve the use of an application programming interface, or API, that enables programmers to use data collected by others in ways that the person who collected that data may not have envisioned. For example, EveryBlock’s Chicago crime section, formerly known as chicagocrime.org, originated as a mashup that used the Google Maps API with information collected from police reports to show the locations of crimes in Chicago. APIs are usually offered under a license that allows data to be used in certain specified ways.

Search engines index and display content from around the Web, including news headlines and snippets, thumbnails of images, and cached copies of web pages. An argument can be made that search engines are using this content under a fair use exception to copyright. Fair use is an exception to copyright protection that allows people to use a limited amount of content under certain circumstances for certain reasons. News agencies have challenged the use of their headlines by search engines as copyright infringement. Photographers and magazine publishers have litigated the use of their images in thumbnail form both unsuccessfully and in at least one case successfully. It’s possible that cached copies of web pages (that search engines make accessible for a time when a web page may not be available) could also be challenged under copyright law. Opinions are varied on how a court might rule on the subject. Other exceptions to copyright include criticism and parody, and digital tools can make it much easier to change images, audio, and video into parodies or critiques.

Another thing to keep in mind when it comes to copyright is that the protection covers artistic works, but it doesn’t cover facts. If I want to republish a phone number or address from the phone book or from Google Maps, there’s no problem — those facts aren’t covered by copyright. However, unique collections of facts are copyrightable. If I copied the phonebook and republished it under my name, or copied and put my own version of Google Maps on the Web, I would be violating copyright if I did so without permission.

Reusing creative works under remix, or a Creative Commons License, or through a use allowed under an API aren’t problems under copyright, though those reuses might seem to be questionable to the casual observer. Exceptions like fair use, criticism, and parody might also seem to present copyright as a protection without clearly defined boundaries.

For all those legal reuses of creative works on the Web, there are many others that aren’t. I contacted someone a few months ago who was republishing blog posts on his site written by me and many others. I asked him to remove my posts. He insisted that since I was sending out full RSS feeds of my posts, there was an implied license for him to reuse my content as he saw fit. He refused to remove the posts, so I contacted his hosting company, and explained how he was violating their acceptable use policy by publishing my copyrighted material. The host asked him to remove the content, and gave him 48 hours to do so. He decided to comply with their request. Unfortunately, I also decided from then on to publish only post excerpts through my RSS feed in case others believed that they could use my content in a similar manner.

If you’re a web publisher, chances are that someone may have copied something that you’ve created online and republished it without permission. To have it removed, a good first start is often with a politely worded email. For example, another case of someone republishing an article of mine without my knowledge involved a free articles website. In this instance, the person had taken my post and submitted it to the article database, declaring that they were the original creators of the content. I discovered this when I contacted the owner of the site where I found my post reproduced. With a couple of polite emails to the owner of the article database and to the person who had taken the article from their site, I was able to get both to remove my post.

However, sometimes that polite contact doesn’t result in the removal of copyrighted material. Even worse, what happens when someone copies your work, publishes it on the Web, and their copy shows up in search engine results pages, while your (original) version is filtered out of those results? Search engines have long taken the stance that showing pages in search results that contain substantially the same content isn’t a good user experience. Because of that, they attempt to identify duplicate — or near duplicate — content when they crawl the web, index pages, and serve search results. One is shown, and the other is not.

If this happens to you, you may have to contact the search engines to make them aware of the problem. Google and Microsoft/Bing have agents under the Digital Millennium Copyright Act (DMCA) whom you can contact. Yahoo accepts copyright infringement notices from web publishers rather than explicitly following the DMCA. A successful DMCA or copyright infringement notice may result in the removal of the pages duplicating your content from search results.

A good place to learn more about copyright and copyright infringement is the Chilling Effects Clearinghouse (www.chillingeffects.org/copyright/), a joint project run by the Electronic Frontier Foundation and law clinics from a number of law schools. Copyscape (www.copyscape.com/) and similar services can also be useful for discovering when someone may have copied content from your web pages. In fact, Google published a patent application a couple of years ago for a “Duplicate Content Search Engine” that web publishers could use to find other pages that duplicate their content. So far, Google hasn’t come out with that search engine, but it’s possible they could in the future.

If you, 1) find someone copying your content without permission or a license; 2) deem it unlikely that fair use or criticism or parody applies; and 3) have taken initial steps to contact them that haven’t provided the desired results, you may want to contact an attorney to learn about other options.

The Internet has made it easier to share creative works than ever before, and sometimes that sharing happens without the permission or knowledge of those holding copyrights for those creations. Case law involving copyright in fixed materials like printed books and photographs can seem murky when you start applying them to mashups and cached copies of pages or thumbnails of images in search results. It will take a lot of work and individual cases being adjudicated before digital copyright is sufficiently clarified and even then, there will always be issues open to significant question.

About the Author

Bill Slawski is a Senior SEO Consultant for Webimax, and blogs about search-related patents and papers at SEObythesea.com. He's been promoting websites since 1996, and can usually be found either with his nose buried in a patent or in the HTML code of a web page, or exploring the local history of a small town with camera in hand. Bill has an undergraduate degree in English from the University of Delaware, and a Juris Doctor from Widener University School of Law.

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